and had not been readmitted to representation in Congress; in fact, it was not until three years later that the majority of them were restored to the full enjoyment of this right. "The question as to whether they could give valid assent to an amendment to the Constitution was one which might possibly be raised." "If they could not participate in the enactment of statute law, how could they participate in the far weightier duty of framing the organic law of the Republic?" In the case of the fourteenth and fifteenth amendments, the requisite majority was secured through the policy pursued by Congress of requiring from the States late in rebellion, as one of the conditions precedent to their recognition and the admission of their representatives in the Federal Legislature, the ratification of one, and in most instances of both, of these amendments. By this expedient the authoritative settlement of this question was rendered unnecessary."

187. CAN A STATE RECONSIDER ITS ACTION UPON A CONSTITUTIONAL AMENDMENT?

3

4

Three States, after giving their consent to the fourteenth amendment, and one after similar action upon the fifteenth amendment, declared through resolutions passed by their legislatures that they withdrew their consent. In all but one of these instances this action was taken before the amendment had been ratified by three-fourths of the legislatures of the several States, and it was contended that such action could be taken previous to the incorporation of the amendment into the Constitution. The Secretary of State, in canvassing the votes upon the fourteenth amendment, being in doubt how such cases should be regarded, issued a certificate reciting the facts and declaring the adoption of the amendment in case the ratification of the two States which had attempted to recall their consent was still to be considered valid. Congress immediately passed a concurrent resolution declaring the ratification of the amendment valid and sufficient, and on the

1 Blaine, 1, p. 540; 11, pp. 112, 113. Foster, Com. on Const., I, p. 227. The thirteenth amendment "never obtained the requisite ratification," "unless the validity of this action by the governments of the former insurgent States, organized by Lincoln and Johnson, is recognized."

2 Cooley, Constitutional Law, pp. 210-211.

3 New Jersey, Ohio, and Oregon, but the latter withdrew her consent after the adoption of the amendment. See App., Nos. 1135-1140.

4 New York. App., No. 1284.

5 Acting under the law of April 20, 1818, U. S. Stat. L., III, p. 439.

28th of July, 1868, the Secretary of State issued a second proclamation declaring the amendment to be a part of the Constitution.'

4

3

On the other hand, in the case of the thirteenth amendment, one State, which had previously rejected the amendment, reconsidered its action. Four similar cases occurred in connection with the fourteenth amendment, and two with the fif teenth amendment, some even subsequent to the proclamation declaring the adoption of the respective amendments. All these States, where the action had been taken previous to the issuing of such proclamation, were included by the Secretary of State in the list of States ratifying.

From the above it would seem that practice has decided that a State having once given its consent the question is closed and it can not recall its action, but, on the other hand, that a State that has rejected an amendment can reconsider its action at any time previous to the incorporation of the amendment into the Constitution."

188. THE DIFFICULTIES OF AMENDMENT.

In summarizing the results of the attempts to amend the Constitution during the first century of its history, we find that besides the fifteen amendments now a part of the organic law, only four have been proposed by Congress to the States for ratification. Two of these, one on the apportionment of Representatives, the other on titles of nobility, failed of adoption by only one ratification. In addition, nine have passed the Senate and nine the House of Representatives."

10

8

The failure to secure amendments in the past does not seem to prevent the frequent introduction of new proposals to change the Constitution. In the Forty-ninth Congress there were no

Ibid.

New Jersey.

8 North Carolina, South Carolina, Georgia, and Virginia.

4 Ohio, New Jersey. Pennsylvania reconsidered its action refusing to ratify the amend ment in regard to the apportionment of Representatives, the first of the twelve submitted by Congress in 1789. Her first action was taken March 10, 1790. Senate Journal, First Congress, second session, p. 39. Her action in ratification of this amendment October 26, 1791. Senate Journal, Second Congress, first session, p. 11. See App., No. 295.

5 For full discussion, see Jameson, Constitutional Convention, pars. 576-584; also, Cooley, Constitutional Law, pp. 211, 212, with notes.

These constitute but four groups in point of time and purpose.

7 App., Nos. 243, 295, 399, 931.

App., No. 295, ante, par. 22.

9 App., No. 399, ante, par. 99.

10 App., Nos. 409, 485-486, 489-490, 505-506, 535, 545, 1308, 1676, 1691.

11 App., Nos. 228, 230, 345, 359, 1055, 1079, 1250, 1401, 1477.

less than fifty-four resolutions, and in the Fiftieth Congress forty-eight, to amend the Constitution.1

In the light of the history of the different movements to secure amendments, we cannot believe that the expectation of the framers of the Constitution has been fulfilled. Nothing of strength has been added to the Constitution by amendment except in the case of the "reconstruction amendments," and these were carried only after a civil war.3

Why, it may be asked, have so few of the more than eighteen hundred propositions looking to the amendment of our fundamental law been successful? In part because some were suggested as cures for temporary evils, others were trivial or impracticable, still others found a place in that unwritten constitution which has grown up side by side with the written document, and whose provisions are often as effective as those contained in the organic law; but the real reason for the failure of those other amendments which have, been called for repeatedly by the general public has been due to the insurmountable constitutional obstacles in their way." "It would

4

In the Fifty-second Congress even more-64 in the first session and 9 in the second session; 73 in all.

2 Speech of Iredell in North Carolina convention, July 29, 1788: "The constitution of any government which can not be regularly amended when its defects are experienced reduces the people to this dilemma: They must either submit to its oppression or bring about amendments more or less by a civil war. The Constitution before us can be altered with as much regularity and as little confusion as any act of assembly-not, indeed, quite so easy, which would be extremely impolitic, but it is a most happy circumstance that there is a remedy in the system itself for its own fallibility, so that alterations can without difficulty be made, agreeable to the general sense of the people." Elliot, IV, pp. 176, 177. The experience of the first few years confirmed this view. In an article in the American Register for 1809, p. 8, discussing the question of amendments, is the following: "There is little doubt that in the lapse of a few generations the Constitution of the United States will undergo a total but gradual change."

3" The sovereign of the United States has been roused to action but once during the course of ninety years. It needed the thunders of the civil war to break his repose, and it may be doubted whether anything short of impending revolution will ever again arouse him to activity. But a monarch who slumbers for years is like a monarch who does not exist. A federal constitution is capable of change, but for all that a federal constitu tion is apt to be unchangeable." Dicey, Law of the Constitution (4th ed.), p. 140.

4 Such changes must be sought in the statutes, in the decision of the courts, and in the customs and practices of the several departments of the Government. See article by Prof. McMaster in Shaler's United States, II, p. 500. It is almost incorrect to say that throughout this period (1804-1865, during which the Constitution was not altered in either word or syllable) "the Constitution was unamended, for it was so expanded by the decisions of Marshall that they amounted to virtual amendments to its text." Report of a committee of the New York State Bar Association, 1890. Reports of the New York Bar Association, Vol. XIII, p. 140.

"When we consider that these legislatures in turn act through two separate assem. blies, each at all times suitably impressed with its own importance and independence, and generally jealous and suspicious of dictation from the Federal Government, we realize the difficulty of securing the coincidence of so many assemblies and so many minds on a

seem," as a well-known American writer has truly said, "that no impulse short of the impulse of self-preservation, no force less than the force of revolution, can nowadays be expected to move the cumberous machinery in Article v.”1

When we contrast this paucity of amendments with the frequency of constitutional revision and change in the States, it is the more striking. Only one of the original States lives under its first constitution, namely, Massachusetts, and that instrument has been amended far more than the Federal document. It is doubtless true that this tendency to change has been in some instances carried too far, and that the constitutions of some of our States enter so much into detail that their provisions partake more of the nature of the statutory than the fundamental law. Still many salutary changes have been effected, and these constitutions are, in consequence, much better adapted to meet the needs of the present age. The fact that the modern State constitutions have entered so largely into technique and detail render them less likely to be permanent and increases the necessity of amendment. This being true, one of the demands of the time is for greater facility in procuring amendments.*

Fortunately, the Federal Constitution, owing to the fact that it deals only with the most general elements of government, has proved so elastic as to adapt itself to new contingencies and circumstances, and thus the necessity of amendment has been reduced to a minimum.5 There still remain, however, certain desirable reforms, rendered apparent by more than a single proposition in the exact form proposed." Ibid., p. 138. "Only five times in a century of constitutional government has the Constitution been changed, an immunity which must be attributed not only to its original completeness, but to the conservative spirit of the national and State legislatures and the intrinsic difficulties attending the process." Ibid., p. 141.

1 Woodrow Wilson, Congressional Government, pp. 242-243.

2 The total number of distinct constitutions, either newly adopted or completely revised in the one hundred and ten years subsequent to the Declaration of Independence was 104, and to these several constitutions 214 partial amendments have been adopted. The average life of a State constitution has been twenty-seven years. Hitchcock, American State Constitutions, pp. 13, 14. Davis, American Constitutions, pp. 475, 476. See also Bryce for later figures, 113 constitutions and 240 partial amendments. Vol. 1, pp. 457, 458. See also ibid., chaps. 38, 39. Up to 1897 the number of partial amendments is 300.

3 Reasons for this, see Bryce, 1, pp. 458-462, 490-493. Hitchcock, pp. 34-47.

4 Jameson, J. F. An Introduction to the Study of the Constitution and Political History of the States, p. 14.

5" If there is any one thing to which we owe the permanency of our government, it is this, that so little is settled dogmatically; that so much is left for experiment." McMas ter in Shaler's, United States, II, p. 500.

century's experience and the changed conditions of our people and age. Although constructive statesmanship did not end with the adoption of the Constitution, as some would have us believe, and although there exists to-day more wisdom and capacity in matters pertaining to the science of government than at the time the Constitution was formed, still it has proved to be impossible to secure these reforms because they can be effected only by a formal amendment.2

3

Nearly all Americans will agree that a rigid constitution has its excellencies, but is there not a limit to the degree of rigidity desirable? Did not the framers of our Federal Constitution, while seeking "to avoid the dangers attending a too frequent change of their fundamental code," advert "to an opposite danger to be equally shunned—that of making amendments too difficult?"4

Has not the mode provided proved to be of

*

1 At no time in the century have there failed to be present in Congress members who, out of regard for the memory of the "fathers," "look at the Constitutions," as Jefferson said, "with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched." Two examples will suffice: Speech of Mr. Purviance of North Carolina, December 7, 1803; Annals, pp. 692, 693. He opposed "any innovation on the sacred charter, because when we shall have once begun to make incursions on it, there is no knowing at what point of progress we shall stop. As for myself, while one fragment of this sacred charter remains, I will hug it to my heart and cherish it as I would the vital juices of my existence. I believe that it is now absolutely perfect; if it be once invaded the work of destruction will not be arrested until the happiness and liberties of our country are destroyed." Mr. English of New Jersey, in a speech January 10, 1893, said: "I object to all and any of this tinkering with the Constitution; the horror that is in my nature at any profane touch upon the Constitution" etc. "Let us pause before we further amend the Constitution and lay profane hands upon it, to reflect whether or not we are setting a precedent which may be evil or bring evils upon the Republic. Let the Constitution stand. Go no further if you value that inheritance which your fathers gave you and which their sons are bound to defend and support." Record, Fiftysecond Congress, second session, p. 491. Such persons should read Jefferson's comment, (Works, VII, pp. 14, 15), and also Jackson's message, where he says, "Evils which can be clearly traced to an organic defect in the Constitution ought not to be overlooked through a too scrupulous veneration of the work of our ancestors." Senate Journal, Twentyfirst Congress, second session, pp. 21-22.

2 Changes which could be effected by interpretation it has been possible to secure, but any change affecting any provision in regard to the form of the government it has been impossible to secure, as for example, the abolition of the Electoral College, the popular election of Senators, the lengthening the term of Representatives, conferring upon the President power to veto items in appropriation bills, etc.

3 Cooley, Constitutional Law, pp. 21, 22.

4 Jameson, Constitutional Convention, p. 549. "Provisions regulating the time and mode of effecting organic changes are in the nature of safety valves, they must not be so adjusted as to discharge their peculiar function with too great facility, lest they become the ordinary escape pipes of party passion; nor, on the other hand, must they discharge it with such difficulty that the force needed to induce action is sufficient to explode the machine. Hence the problem of the constitution maker is, in this particular, one of the most difficult in our whole system, to reconcile the requisites for progress with the requisites for safety." Ibid.